Beyond the Visa: New USCIS memo wants immigrant visa applications to be filed abroad

By Licelle Cobrador

Starting this week, The FilAm will run a regular space for immigration matters, “Beyond the Visa,” to be written by lawyer Licelle Cobrador. Atty. Licelle of Cobrador & Associates www.cobradorlaw.com begins with the question: What’s the latest? Licelle cuts through the noise, bringing deep knowledge, focus and clarity to our immigration journeys. You may reach her at info@cobradorlaw.com. 

On May 22, 2026, the USCIS issued a memorandum restricting I-485, Adjustment of Status/ AoS (green card applications without departing from the United States) to “extraordinary circumstances”.

Affected individuals are F-1 students, nonimmigrant workers, B-1 and B-2 visitors and other nonimmigrants with plans of applying while physically present in the U.S. The said memo instructs USCIS officers to deny AoS applications from visa holders on nonimmigrant status unless there are extraordinary circumstances. Officers must instead instruct applicants to pursue immigrant visa applications through consular processing abroad. Review should be on a case-by-case basis. The default pathway will now be Consular Processing because of this policy.

Historically, AoS was not meant to replace traditional consular processing. It remains a discretionary, exceptional benefit available only to eligible applicants who warrant favorable exercise of discretion. Positive factors include family ties, good character, and strong immigration history. The memo underscores the longstanding discretionary authority of the agency and subjects the AoS applicants under heightened scrutiny, particularly concerning immigration violations such as unauthorized work and overstays, misrepresentation, or conduct inconsistent with nonimmigrant intent.

Many things remain unclear such as:

a) What are extraordinary circumstances?

b) What about dual-intent visa holders (H-1 and L-1) who should be able to pursue permanent residency while working in the United States?

c) What will warrant a favorable exercise of discretion?

d) Is there a transition period –what will happen to those with pending I-485 applications? e) What happens to those with work and travel authorizations based on a pending I-485 application?

Here are a few takeaways: 1) Stay in valid nonimmigrant status; 2) If you have a pending I-485, do not withdraw it. We still do not have clarity on what will happen and impulsively withdrawing it could waive certain protections; 3) If you are about to file I-485, review and reassess. Your new I-485 filing will be adjudicated under the extraordinary ability standard. Whether you should proceed will depend on your specific situation; and 4) This policy does not close the door on obtaining a green card. Consular processing will be based on one’s visa category, priority date, and country of chargeability.

Immigration is inherently case-specific. An individual’s application stands or falls on its own unique facts. Do not assume anything.

Consult with a trusted immigration attorney before making your next move.